The defendant costs specialists

Jackson fixed fee extension proposals

By on Aug 1, 2017 | 3 comments

Ancient Chinese curse: “May you live in interesting times”.

And so, Lord Justice Jackson has published his recommendations for extending fixed fees.  The key proposals for extending fixed recoverable costs (“FRC”) to all fast-track cases, and a significant increase in fixed fees for the majority of claims with a value of up to £100,000, are no great surprise.

In more detail, he proposes:

  • All recoverable costs in the fast track should be fixed, the figures should be reviewed every three years.
  • A new ‘intermediate’ track with a streamlined procedure should be created for monetary relief cases above the fast track, which are of modest complexity and up to a value of £100,000.
  • There should be a grid of FRC for intermediate track cases, the figures should be reviewed every three years.
  • There should be FRC for (a) applications to approve settlements for children and protected parties and (b) costs only proceedings, in respect of intermediate track cases.
  • Save as set out in recommendation (iv), Part 8 claims should be excluded from the proposed FRC regime.
  • The Civil Justice Council should, in conjunction with the Department of Health, set up a working party to develop a bespoke process for clinical negligence claims up to £25,000, together with a grid of FRC for such cases.
  • There should be a voluntary pilot of capped recoverable costs, in conjunction with streamlined procedures, for business and property cases with a value up to £250,000. If the pilot is successful, such a regime should be made available at the judge’s discretion for any suitable case in the Business and Property Courts or the Business and Property Lists of the County Court.
  • For FRC cases, where a defendant fails to beat a claimant’s Part 36 offer, instead of indemnity costs applying in place of FRC, the claimant should be awarded a 30% or 40% uplift on costs. (This is what I suggested, although with a different level of uplift, 18 months ago.)
  • A mediated agreement has been reached as to a new claims process for NIHL claims, with corresponding FRC, and this is endorsed.
  • The Aarhus Rules should be adapted and extended to all judicial review claims.
  • Costs management should be introduced, at the discretion of the judge, in ‘heavy’ judicial review claims.

Once the new reforms have bedded in, it is proposed that further consideration should be given to further extensions of fixed fees for other cases.  It is proposed that this review should be after four years.

In relation to fast-track matters, they should be placed into four bands of complexity, band 1 being the least complex and band 4 the most:

  • Band 1: RTA non-personal injury, defended debt cases;
  • Band 2: RTA personal injury (within protocol), holiday sickness claims;
  • Band 3: RTA personal injury (outside protocol), employers’ liability accident, public liability, tracked possession claims, housing disrepair, other money claims; and
  • Band 4: Employers’ liability disease claims (other than noise-induced hearing loss, which is set to have its own dedicated FRC scheme), any particularly complex tracked possession claims or housing disrepair claims, property disputes, professional negligence claims and other claims at the top end of the fast-track.

The criteria to qualify for the new intermediate track would be:

  • The case is not suitable for the small claims track or the fast-track;
  • The claim is for debt, damages or other monetary relief, no higher than £100,000;
  • If the case is managed proportionately, the trial will not last longer than three days;
  • There will be no more than two expert witnesses giving oral evidence for each party;
  • The case can be justly and proportionately managed under a new expedited procedure;
  • There are no wider factors, such as reputation or public importance, which make the case inappropriate for the intermediate track;
  • The claim is not for mesothelioma or other asbestos-related lung diseases;
  • Alternatively, if the above do not apply, where there are particular reasons to assign the case to the intermediate track.

When will all this happen?

Firstly, it would need government approval and then go out for public consultation.  Then the relevant Civil Procedure Rules would need to be re-written.  There is no realistic prospect of this all happening by October 2017.  April 2018 also looks optimistic.  We are probably therefore looking at October 2018.  In response to questions, Jackson indicated that the goalposts should not be moved mid-litigation.  I would therefore anticipate that the trigger-date will be the date of issue (ie all claims issued on or after 1 October 2018).

    3 Comments

  1. I respectfully disagree on trigger date – entry onto the different bands in both Fast & Intermediary Tracks requires to be notified and responded to in the Letter of Claim/Reply. That cannot happen if the trigger date to implement is Issue.

    Further such an implementation date would materially change the method of calculation of costs, either current CPR 45 fixed or “open” (i.e. hourly rate) mid-case; and that contradicts Jackson’s comment that “that the goalposts should not be moved mid-litigation”, something the original poster in fact quotes.

    Of course, what the Government decide to pick and choose out of this Review is entirely open to their own agenda (for example, their determination to wipe out whiplash claims by artificially fixing damages at a level lower than an increased SCT, does not fit with Jackson’s proposal to re-Band RTA’s with EL/PL claims, thus significantly increasing the costs payable on Portal exited claims); but if they proceed to utilise Issue date as the trigger as the post suggests, chaos will follow in the Courts (again) as patrons rush to issue, likely as not in an unprepared state and leave open arguments as to what costs and bands should apply, and possible sanctions for conduct.

    Date of incident should be the trigger point. In NIHL/Legacy cases, that may have to be extended to date of knowledge, in line with the Limitation Act point.

    Finally, for now; the range of challenges and arguments already which spring to mind from reading the Review are breathtaking. “interesting times” indeed, for those with the stomach to stay in the game

    I have one thanks

    1st August 2017

  2. So its over then!

    Now I have to re-train and get a new career, I always knew it was a highly compromising situation when a range of Barristers/Lawyers and Judges decide our fate! Only one Costs Lawyer on the advisory panel, that is a shocker.

    Does anyone need any painting or decorating doing, I am very meticulous (just like the days when I drafted bills everyday).

    I’ve got something to offer somewhere ……… maybe I can become an advisor for the rules committee? … id start by saying

    Dear Sirs,

    You have achieved your goals for 2017-20 in that perceived justice for most will be unattainable due to cost. We can now attract post Brexit foreign investment/trade on the basis that if the big companies/organisations and banks pour the money in they can get whatever outcome they want on everything. Well done.

    wakkajakka

    1st August 2017

  3. Justice is dead. Long live the totalitarian-style government.

    The profession – Costs Lawyers, Solicitors and Barristers are largely dead. Those few remaining survivors of the Jackson apocalypse picking up the crumbs left behind.

    But it’s all okay as long as the court fees are generating huge profits and the insurers are getting richer.

    Despairing

    3rd August 2017

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